Judge shuts down January 6-based challenge to Rep. Madison Cawthorn’s candidacy

By Marshall Cohen, CNN

A federal judge on Friday shut down a legal challenge to GOP Rep. Madison Cawthorn’s candidacy from a group of North Carolina voters and advocacy groups who claimed that an old provision of the US Constitution banned him from running because of his role on the January 6 insurrection.

This means the constitutional challenge against Cawthorn is over, though Friday’s ruling could be appealed. It’s a major victory for the pro-Trump firebrand, and a loss for the coalition of constitutional scholars, anti-Trump Republicans and liberal activists who filed the challenge.

The ruling was narrow, with Chief Judge Richard Myers concluding that a Civil War amnesty law passed by Congress in 1872 essentially repealed the 14th Amendment’s “disqualification clause,” which prohibited officeholders from returning to elected positions if they supported an insurrection, but also said Congress could remove that disability with a two-thirds vote.

Myers agreed with Cawthorn’s lawyers, who argued that the Amnesty Act of 1872 applied not only retroactively to Confederate officials, but also in perpetuity regarding future rebellions.

Cawthorn has denied any wrongdoing regarding January 6 and says he isn’t an insurrectionist. As part of their case against Cawthorn, the challengers highlighted the fact that he posted militant tweets in the run-up to January 6 and spoke at Trump’s Ellipse rally before the attack.

Myers, an appointee of former President Donald Trump, handed down the ruling during a two-hour hearing at the federal courthouse in Wilmington, North Carolina, which featured arcane legal arguments and history lessons about the US Constitution, the post-Civil War amendments and how they apply today.

“We are at a moment in which interest in free and fair elections is at its peak,” Myers said, adding that it was his responsibility as a federal judge to protect “the soapbox… the ballot box… and the jury box. And when those fail, that’s when people proceed to the ammunition box.”

The anti-Cawthorn campaign was backed by a legal advocacy group called Free Speech For People, as well as Our Revolution, the left-wing group founded by Sen. Bernie Sanders. They recruited North Carolina voters who live in Cawthorn’s district to challenge his candidacy.

After they filed their challenge with the North Carolina State Board of Elections, Cawthorn sued the board in federal court to shut down the process. If the judge hadn’t intervened on Friday, the state election board would’ve eventually appointed a panel to hear the candidacy challenge, which would’ve had the power to depose Cawthorn or issue subpoenas for documents.

The federal case moved as a fast pace, and the judge agreed that Cawthorn needed legal relief quickly. North Carolina holds its primaries in May and will start printing ballots in the next several weeks.

Debates over century-old laws

The hearing was a striking display of the reality that America is grappling with a level of internal strife and democratic backsliding that hasn’t been seen since the Civil War. The bulk of Friday’s proceedings revolved around how century-old laws regarding insurrections apply to today.

During the federal litigation, the North Carolina State Board of Elections was represented by lawyers from the state attorney general’s office, which is run by a Democrat. They maintained that the election board had the power to hear the challenge and would’ve had the power to disqualify Cawthorn based on the 14th Amendment, if there was enough supporting evidence.

State prosecutor Terence Steed said during Friday’s hearing that the 1872 amnesty law only applied retroactively to Confederate officials and troops — and not Cawthorn. He said Cawthorn was relying on an “absurd interpretation” of the law that “defies logic” to claim immunity.

“The 1872 Amnesty Act did not absolve all future insurrections,” Steed said, pointing out that Congress used the 14th Amendment to disqualify a socialist lawmaker from office in 1919.

That’s the same interpretation as a Gerard Magliocca, a law professor at Indiana University who is perhaps the leading scholar on the constitution’s “disqualification clause.” He was willing to testify on behalf of the challengers, and believes the old amnesty laws didn’t shield Cawthorn.

The judge disagreed — but said his ruling was narrow and essentially applied only to Cawthorn.

“The ruling will be reversed on appeal,” Magliocca told CNN in an interview after the hearing. “There are many problems with the argument that the 1872 law conferred amnesty onto all people forever who would engage in insurrection against the US Constitution. That’s not what it says. And nobody at the time thought that is what the law would do. Not a single person.”

Advocacy group says ruling is ‘absurd’

Ron Fein, legal director of Free Speech For People, urged the state election board to appeal the decision immediately because the judge was “wrong on the law” and that his ruling was “patently absurd.” (The board’s lawyers declined to comment about any potential appeal.)

“Until the decision is overturned on appeal, the state process is on pause, and Madison Cawthorn is temporarily shielded from answering questions about whether his involvement in January 6 disqualifies him under the Fourteenth Amendment,” Fein said in a statement.

The group previously said it will try to disqualify additional pro-Trump Republicans in other districts who supported the efforts to violently overturn the 2020 election. But Friday’s ruling could derail those plans, or at least is a legal roadblock in one state.

John Wallace, a Democratic lawyer who represented the challengers, said that “the North Carolina voters who saw it fit to challenge Cawthorn’s candidacy now won’t have a chance to do so.”

Cawthorn’s team cheered the ruling, and echoed comments that the GOP lawmaker made last week, claiming that the candidacy challenge was an effort by left-wing groups to “cancel” him.

“This is a concerted, well-funded national effort to undermine our democracy by disqualifying eligible people from running for office,” Cawthorn lawyer James Bopp Jr. said after the hearing.

This story has been updated with additional details.

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